Supreme Court gives EPA victory on greenhouse gas rules

Article by: ADAM LIPTAK New York Times

June 23, 2014 - 7:52 PM

WASHINGTON – The Supreme Court on Monday handed President Obama’s Environmental Protection Agency a victory in its efforts to regulate greenhouse gas emissions from stationary sources like power plants, even as it criticized what it called the agency’s overreaching.

“EPA is getting almost everything it wanted in this case,” Justice Antonin Scalia said in summarizing the decision. “It sought to regulate sources it said were responsible for 86 percent of all the greenhouse gases emitted from stationary sources nationwide. Under our holdings, EPA will be able to regulate sources responsible for 83 percent of those emissions.”

Scalia said the agency was free to do so as long as the sources in question “would need permits based on their emissions of more conventional pollutants.”

That part of the decision, which effectively sustained regulation of nearly all the sources the agency had sought to regulate, was decided by a 7-2 vote. Chief Justice John Roberts and Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan joined that part of the decision.

The EPA expressed satisfaction. “The Supreme Court’s decision is a win for our efforts to reduce carbon pollution because it allows EPA, states and other permitting authorities to continue to require carbon pollution limits in permits for the largest pollution sources,” the agency said in a statement.

Another part of the decision rejected, in harsh terms, the agency’s primary rationale for the regulations. The agency had contended it would interpret the Clean Air Act to require regulation of far fewer stationary sources of pollution than the law seemed to require.

“An agency has no power to ‘tailor’ legislation to bureaucratic policy goals by rewriting unambiguous statutory terms,” Scalia wrote. Roberts, Kennedy and Justices Clarence Thomas and Samuel Alito joined that part of the decision, which was decided by a 5-4 vote.

The National Federation of Independent Business welcomed what it said was the Supreme Court’s refusal to allow the agency to rewrite the law. “If this rule had been allowed to stand, small-business owners such as ranchers, farmers, manufacturers, restaurant owners and others would have seen more paperwork, more oversight and fines,” the group said in a statement.

The decision did reject the agency’s primary rationale for the regulations. It did not seem to directly affect the administration’s recently announced plans to cut carbon pollution under a different set of ­regulations.

The regulations challenged in Monday’s decision built on the Supreme Court’s 5-4 decision in 2007 in Massachusetts vs. Environmental Protection Agency, which required the agency to regulate emissions of greenhouse gases from new motor vehicles if it found that they endangered public health or welfare.

The agency made such a finding, saying that “elevated concentrations of greenhouse gases in the atmosphere” pose a danger to “current and future generations,” and it set limits on emissions from new vehicles.

The agency said its regulation of tailpipe emissions also required regulation of emissions from stationary sources under two permitting programs. While acknowledging that the relevant provisions of the Clean Air Act fit such emissions imperfectly, the agency said the law nonetheless compelled it to require permits.

The Clean Air Act says those programs cover all sources that can annually emit 100 or 250 tons of the relevant pollutant, a threshold that works tolerably well for conventional air pollutants like lead and carbon monoxide. But that threshold, applied to greenhouse gases, which are emitted in far greater amounts, would require the regulation of millions of sources of ­pollution.

Applying the law as written would increase the number of covered sources under one program to more than 80,000, from fewer than 280, reaching commercial and residential sources and subjecting them to expenses averaging nearly $60,000.